San Miguel County Ready to Regulate Oil and Gas Development

By KAY MATTHEWS

The San Miguel County Commission is holding a special meeting today, September 17, to review the draft ordinance regulation on oil and gas development in the county. The moratorium on oil and gas development, in place for four years, expires in December and the county hopes to enact a final ordinance by then.

Officially called the Land Use Code, the ordinance was promulgated by the Los Angeles-based consultant Robert Freilich, a planning and zoning attorney who has drafted many oil and gas ordinances around the country, including the Santa Fe County Ordinance. Freilich will participate in today’s hearing via phone or Skype.

The strength of the ordinance appears to be the many imposed restrictions and the assessments the industry will have to conduct to obtain a drilling permit:

As Pat Leahan, a member of PROTECT San Miguel County, wrote in La Jicarita News in 2010, “To drill just one oil or gas well, somewhere between 1 to 8 million gallons of water is required. If you look at the average of 2.6 to 5.5 million gallons of water per well, this amounts to 8 to 17 acre-feet of water. And that’s just one well being fracked one time. Depending on the amount of acreage, there can be hundreds or thousands of wells. And each well can be fracked multiple times. This is a heavy water-use industry, and that water has to come from somewhere. Water is a precious resource of limited supply that can’t afford to be wasted or contaminated.”

The draft ordinance stipulates that a Water Availability Assessment shall be conducted for all oil and gas development approvals that will include an evaluation of water supply for the estimated life of the project, the identification of suppliers, an assessment identifying existing water rights, entitlements, or contracts, and the quantities of water received in prior years. If water supplies are insufficient, alternatives must be submitted.

The county will also insert into all development agreements a condition that if severe drought and water unavailability continues it reserves the right to suspend existing permits until adequate water resources are available.

Setbacks

The ordinance will require a 1.5 miles setback for wells from important underground aquifers and surface aquatic, acequia, and riparian habitats such as floodplains, springs, wetlands, and drainages, including but not limited to the Canadian Basin.

Environmental Health and Safety

Drilling site. photomacriverkeeper.org photo

“Occurrence of adverse public nuisance, environmental and land use effects and impacts will result from the drilling, fracking, production, transportation and abandonment of oil and gas activities within the County.”

Under the New Mexico Public Health Act the county has the authority to “investigate, control, and abate the causes of disease . . . sources of mortality and other conditions of public health.”

An applicant must supply the following reports and assessments: a Site Plan; a Consistency Plan (with the Comprehensive Plan); an Environmental Impact Report; an Adequate Public Facilities and Services Assessment; a Traffic Impact Assessment; a Geohydrologic Report; a Fiscal Impact Assessment; and a Land Evaluation Suitability Assessment (35 pages are devoted to detailing the requirements of these reports).

Getting here was not without contention. Proponents of the Mora County Community Water Rights and Local Self-Government Ordinance (drafted by the Community Environmental Legal Defense Fund [CELDF]), which bans oil and gas development in that county, tried to convince San Miguel County and the city of Las Vegas to take that strategy. The Las Vegas City Council did adopt an ordinance banning oil and gas development once the city’s moratorium expired. The mayor, who had been instrumental in enacting the moratorium, requested that some of the language in the Bill of Rights Ordinance be deleted, specifically the reference to the “sovereignty” of the people of the city and their right to “separate” from other local governments if the ordinance is preempted. These were the same objections raised by county commissioner Paula Garcia in Mora who voted against the ordinance, believing this language makes the county more susceptible to legal challenge. The CELDF proponents came to a Las Vegas City Council meeting where the mayor proposed renewing the moratorium and demanded that he “Sign” or “Resign”; when he refused to sign the ordinance without the word changes they initiated his recall. The recall was unsuccessful.

barryonenergy.wordpress.com photo

A San Miguel Oil and Gas Ordinance Task Force met for many months laying the groundwork for the promulgation of an ordinance until the county, under time constraints, hired Freilich to develop a draft. Members of PROTECT San Miguel had urged the county to consult with Freilich and are generally pleased with his draft. The organization has reviewed the ordinance, and La Jicarita spoke with Pat Leahan and Bob Wessely, who laid out some concerns and changes they’d like to see in a new draft:

• Language needs to be added that acknowledges the Pecos River Basin in the western half of the county.
• Protection for brackish water aquifers included.
• Mandatory, frequent inspection and monitoring of drill sites by county staff.
• Expert review of all permit applications, which are highly technical.
• Increase the amount of insurance required for companies engaged in development.
• An assessment of the impacts of development on all existing water uses.
• More specific standards on noise impacts and water quality.

At today’s meeting any changes asked for by the commission will be incorporated into a new draft and then forwarded to the Planning and Zoning Commission for review. There will be several public meetings held in November and December before the commission votes on a final ordinance.

2Comments

The strength of anything that Robert Freilich develops is that the chances are pretty good the jurisdiction that adopts an ordinance based on his work will not face a massive takings claim. In your article, the numbers on water use for fracking are probably too high and out of date. I have reviewed the Broadhead report which induced the rush to lease sub-surface rights in Mora and San Miguel Counties and I am far from convinced that this is an oil and gas play that will be developed in this round. Remember this was done before the Williston Basin really got going and before the full potential of the Permian Basin was understood. It is good to be prepared. BTW that report is pretty old and could usefully be updated.

Mr. Wilbur, thank you for your remarks. As a regular reader of La Jicarita, I am always grateful for thoughtful, informed comments. Much appreciated.

Re: the water use figures, you are correct that those are a few years old. I’m not sure the numbers are too high, though. Those data are based, among other things, on interviews with a geologist and hydrologist who explained to me that the geologic folds in this region are so deep and multi-layered (my words) and contain so many folded layers of volcanic rock that drilling here would likely require that upper amount of water. We were, in that moment, standing on the 27,500 acres leased to Shell on the east side of Hwy. 518 in San Miguel County. (Those parcels are known to us locals as the Santa Fe Opera O&G leases. That’s a whole other story.)

After doing my research on Dr. Freilich, and after having worked with him for a short time now, I concur with your view. His law firm has significant credibility in avoidance of takings suits, yet they want to get strong protections in place for communities, writing the strictest regulations possible.

Re: whether or not this region (i.e., the Penn Play, which includes Mora and San Miguel Counties) is a viable oil and gas play, well, Shell refuses to disclose even to Dr. Freilich what their data show. But we have learned that the extractive industries are interested in more than just oil and natural gas. Helium is one of the other “resources” on their wish list, which parts of our region supposedly have in abundance.

Having said all that, I am not an expert. I am simply a community advocate who has been working on this issue for about 8 years. I just looked you up, Mr. Silber, and it appears that you have water (and other) related credentials worth acknowledging.

Thanks again for your educated and educational comments. And thank you, La Jicarita, for the ongoing visibility you give to these critical issues.